[Congressional Record Volume 144, Number 82 (Monday, June 22, 1998)]
[Senate]
[Pages S6762-S6763]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  EFFORT TO REMOVE FEC GENERAL COUNSEL

  Mr. FEINGOLD. Madam President, I rise to talk about an effort under 
way in this Congress to hamstring the agency charged with enforcing the 
Federal election laws--the Federal Election Commission. This effort is 
happening very quietly under the guise of routine agency 
appropriations, but it has deadly serious consequences in terms of the 
independence of the Federal Election Commission. I think it is 
important to call the Senate's attention to it and give notice that I 
intend to do everything in my power to make sure it doesn't happen.
  Here is what is happening. The Appropriations Committee of the other 
body has included a provision in the funding bill for the FEC that 
would result in the firing of the Commission's general counsel and 
staff director. That's right, Madam President. The Congress is now 
going to get involved in the personnel decisions of the FEC, the agency 
that we have charged with overseeing us and the way we conduct our 
reelection campaigns. Some in the Congress want to fire two career 
civil servants who are simply trying to do their job to make campaign 
information available to the public and enforce the election laws.

  Lawrence Noble, the General Counsel, has served the agency since 
1987. John Surina, the Staff Director, has been in that position since 
1983. These are not political appointees. They were put in their jobs 
by a bipartisan majority vote of the Commission, as required by law. In 
fact, both of these individuals were unanimously approved by the FEC 
when they were appointed. They provide crucial institutional 
continuity, especially now that, as of last year, we have put a one-
term limit on the Commissioners themselves.
  But now, unfortunately, some members of Congress apparently don't 
like some things that the Commission has done. And so they are trying 
to engineer, what I would call, a quiet coup. They want to require that 
these two staff positions be refilled every four years by an 
affirmative vote of four Commissioners. And they specify that this 
requirement will apply to the current occupants of the positions. So 
Mr. Noble and Mr. Surina will lose their jobs at the end of this year, 
unless the Commission votes to reappoint them.

  Of course, the Commission itself is in great turmoil. Only two 
members are serving the terms to which they were appointed. Two members 
are holdovers, their terms having expired in April 1995. A fifth member 
is also a holdover, although the President has resubmitted his name. 
And the sixth slot has been vacant since October 1995. So the Congress 
has hardly been blameless if the Commission seems at times to be at 
sea. And now here we are about to create two other vacancies, more 
turmoil and lack of direction at this crucial agency.
  Madam President, specifying by law that top staff positions in the 
agency must be refilled every four years is unprecedented. The 
Congressional Research Service has told me that there are three 
independent agencies--the Equal Employment Opportunity Commission, the 
Federal Labor Relations Authority, and the National Labor Relations 
Board--where the General Counsel is actually a political appointee, 
nominated by the President and confirmed by the Senate. In each of 
these cases, the General Counsel has direct statutory authority.
  But in every other independent agency, including the FEC--and there 
are lots of agencies, Madam President--the FCC, the SEC, the CPSC, the 
FTC, the CFTC, and many more. In all of these agencies, the General 
Counsel is appointed by either the Chairman or the entire body.
  And guess how many of those General Counsels are required to be fired 
after four years unless they are reappointed and reconfirmed by the 
appointing entity. The answer is none. Not one.
  Madam President, I ask unanimous consent that a memorandum from the 
Congressional Research Service on this issue be printed in the Record 
at this point.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

     To: Honorable Russell D. Feingold, Attention: Bob Schiff.
     From: Rogelio Garcia, Specialist in American National 
         Government, Government Division.
     Subject: Appointments to Positions of General Counsel and of 
         Staff Director on Independent Regulatory and Other 
         Collegial Boards and Commissions.\1\
---------------------------------------------------------------------------
     \1\ See footnotes at end of memorandum.
---------------------------------------------------------------------------
       This memorandum responds to your request for information 
     regarding appointments to the position of general counsel and 
     of staff director, or its equivalent, or independent 
     regulatory and other collegial boards and commissions. 
     Specifically, you inquired about the number of such positions 
     to which the President makes appointments with the advice and 
     consent of the Senate. You also wanted to know if the 
     positions included a fixed term of office, and, if they did, 
     what happened to the incumbent when the term expired.
       The position of general counsel at three of 32 independent 
     regulatory and other collegial boards and commissions is 
     subject to Senate confirmation. (The position of staff 
     director, where it exists is not subject to Senate 
     confirmation in any of the 32 agencies.) The three requiring 
     Senate confirmation are the Equal Employment Opportunity 
     Commission (EEOC), Federal Labor Relations Authority (FLRA), 
     and National Labor Relations Board (NLRB). The general 
     counsel positions at the three agencies are for fixed terms 
     of office. At the EEOC, the general counsel is appointed to a 
     4-year term, and remains in office at the end of the term 
     until replaced (42 U.S.C. 2000e-4(b)); at the FLRA, the 
     general counsel is appointed to a 5-year term, and must leave 
     office when the term expires (5 U.S.C. 7104(f)(1)); and at 
     the NLRB, the general counsel is appointed to a 4-year term 
     and must leave office when the term expires (29 U.S.C. 
     153(d)).
       It appears that the above three general counsel positions 
     were made subject to Senate confirmation because of the 
     special responsibilities assigned directly to them by 
     statute. The general counsel for the EEOC is charged directly 
     with responsibility for the conduct of litigation regarding 
     the commission's enforcement provisions and civil actions.\2\ 
     The general counsel for the FLRA has direct statutory 
     authority to investigate alleged unfair labor practices and 
     file and prosecute complaints, as well as ``direct authority 
     over, and responsibility for, all employees in the office of 
     General Counsel, including employees of the General Counsel 
     in the regional offices . . .'' \3\ Finally, the general 
     counsel for the NLRB ``exercise[s] general supervision over 
     all attorneys employed by the Board (other than 
     administrative law judges and legal assistants to Board 
     members) and over the officers and employees in the regional 
     offices, and has final authority, on behalf of the Board, in 
     respect of the investigation of charges and issuance of 
     complaints under [29 U.S.C. 160], and in respect of the 
     prosecution of such complaints before the Board . . .'' \4\
       The general counsels at the other 29 agencies, and the 
     staff director, where the position exists, are appointed 
     either by the agency's governing board, i.e., the board of 
     directors, or the chairman, subject to the general policies, 
     directives, or approval of the governing board. In at least 
     nine agencies, the governing board appoints the general 
     counsel, staff director, and other employees.\5\ In at least 
     five agencies, the chairman, governed by the policies and 
     directives of the governing body, makes the appointment.\6\ 
     In two agencies, the chairman makes the appointment on 
     ``behalf of the commission.'' \7\ In one agency, the chairman 
     appoints the general counsel and staff director, as well as 
     certain other officers, subject to the approval of the 
     commission.\8\ Finally, in one agency, the chairman makes the 
     appointment subject to disapproval by a majority vote of the 
     commissioners.\9\ None of the appointments is for a fixed 
     term of office. They are all indefinite appointments, and, 
     with two exceptions, the incumbents may be removed at any 
     time by the appointing authority.\10\
       If I may be of further assistance, please call me at 7-
     8687.


                               footnotes

     \1\ The position of general counsel in large independent 
     agencies, and at the department level as opposed to the 
     administration or bureau level, in each executive department 
     is subject to Senate confirmation. None of the positions, 
     however, is for a fixed term of office.
     \2\ 42 U.S.C. 2000e-4(b)(1).
     \3\ 5 U.S.C. 7104(f) (2) and (3)
     \4\ 29 U.S.C. 153(d).
     \5\ Commodity Futures Trading Commission (7 USC 4a (c) and 
     (d)), Federal Communications Commission

[[Page S6763]]

     (47 U.S.C. 154(f)(1)), Federal Election Commission (20 U.S.C. 
     437c(f)(1)), Federal Mine Safety Health Review Commission (30 
     U.S.C. 823(b)(2)), Federal Trade Commission (15 U.S.C. 42, 
     National Mediation Board (45 U.S.C. 154 Third), Railroad 
     Retirement Board (42 U.S.C. 231f(9), Tennessee Valley 
     Authority (16 U.S.C. 831b), and Securities and Exchange 
     Commission (15 U.S.C. 78d(b)).
     \6\ Defense Nuclear Facilities Safety Board (42 U.S.C. 
     286(c)), Farm Credit Administration (12 U.S.C. 2245(b)), 
     National Transportation Safety Board (49 U.S.C. 1111(e)(1)), 
     Nuclear Regulatory Commission (42 U.S.C. 5841(a)(2)), and 
     Surface Transportation Board (49 U.S.C. 701(a)(2)).
     \7\ Federal Energy Regulatory Commission (42 U.S.C. 7171(c)), 
     and Occupational Safety and Health Review Commission (29 
     U.S.C. 661(e)).
     \8\ Consumer Product Safety Commission (15 U.S.C. 
     2053(g)(1)(A)).
     \9\ U.S. International Trade Commission (19 U.S.C. 
     1331(a)(1)).
     \10\ The chairman of the Consumer Product Safety Commission 
     may remove the general counsel or executive director with the 
     approval of the commission (15 U.S.C. 2053(g)(1)(B)); and the 
     chairman of the U.S. International Trade Commission may 
     remove the general counsel or other high official, subject to 
     the approval of the governing body (19 U.S.C. 1331(c)(2)(A)).
  Mr. FEINGOLD. Madam President, this is a whole new procedure 
invented, I have to assume, because some Members of Congress are, in 
effect, out to ``get'' Mr. Noble and Mr. Surina.
  Oh, and by the way, there is not a single agency where the Staff 
Director is a political appointee or has to be reappointed by the 
commissioners themselves after a set term. Not one. Frankly, Madam 
President, the inclusion of the Staff Director in this provision in the 
House Appropriations bill seems to me to be a smokescreen designed to 
make this provision seem even-handed. What is really going on here, I 
believe, is that some in the Congress are trying to send a message to 
Mr. Noble, the General Counsel, and through him, to the Commission. 
Some powerful members of Congress don't like some of the cases that Mr. 
Noble has recommended bringing. So they want him out.
  In recent years, the FEC has undertaken a number of controversial 
actions in an attempt to enforce the law that the Congress has written. 
Some of these cases have taken on powerful political figures or groups. 
The FEC pursued a highly publicized case against GOPAC, a group closely 
connected to the Speaker of the House. It has an ongoing action against 
the Christian Coalition alleging that that group illegally coordinated 
its activities with Republican candidates. And, of course, it has 
pursued cases and rulemaking proceedings under a more expansive 
definition of what constitutes express advocacy than some in this 
Congress believe is appropriate.
  All of these actions are objectionable to people on the Republican 
side of the aisle. But let's remember that there is a flip side. The 
Commission has assessed significant fines against the 1992 Clinton 
campaign and the Kentucky Democratic Party. It has pursued litigation 
against the National Organization for Women and has pending cases 
against the California Democratic Party concerning its use of soft 
money, and the advocacy group Public Citizen, alleging that it 
coordinated its activities with a primary opponent of the Speaker of 
the House.
  The bottom line, Madam President, is that the FEC is trying to do its 
job, even when we in Congress don't give it adequate resources to do 
it. And there is another crucial point about these actions. Each and 
every one of the cases or rulemakings I have mentioned was approved by 
a majority of the Commission.
  Now that is significant, Madam President, because unlike most 
agencies, the FEC is evenly balanced with Republican and Democratic 
members. It was carefully designed not to allow either party to have 
control. So a General Counsel can't just work with one party. In order 
to file a case, he must get at least four votes from the Commission, 
including at least one from each party. Now that leads to problems 
sometimes, because if the Commission deadlocks, a General Counsel 
recommendation cannot go forward. But the bottom line is that every 
official action of the FEC must be bipartisan.

  So what we have here, Madam President, is an effort to intimidate. 
The proponents of this firing want to punish the FEC's General Counsel 
for bringing forward recommendations to enforce the law. Even though in 
all of the cases I have mentioned, a bipartisan majority of the 
Commission has agreed with him.
  I should mention one other recommendation that Mr. Noble has made 
that has not received a majority vote of the Commission, and so is not 
going forward yet. Mr. Noble has recommended that the Commission takes 
steps to reduce or eliminate certain kinds of soft money contributions. 
And we know there are some powerful Members of this body who disagree 
with that idea.
  You know, it is really fascinating that some of the same people who 
are pushing this provision, trying to remove the current General 
Counsel say that we don't need to enact campaign finance reform, we 
just need to enforce current law. Well, you can't argue that we need to 
enforce current law and at the same time be trying to fire the chief 
law enforcement officer of the agency. That just doesn't make sense. If 
this provision goes through, and Mr. Noble is relieved of his duties at 
the end of the year, it may be months before a new General Counsel can 
be chosen that will get the bipartisan support that is required. So 
right after the 1998 elections, there will be no one to head up the 
crucially important enforcement functions of the FEC.
  Madam President, we cannot let that happen. We need to let the 
professional staff of the FEC do its job. Surely the 3 to 3 party split 
on the Commission is enough to make sure that the Commission doesn't go 
off on a partisan vendetta. Now we need to stop the partisan vendetta 
that this proposal represents.
  That is why I intend to offer an amendment when the FEC's 
appropriation bill comes to floor to make clear that the Senate does 
not want this House proposal to be part of the final bill. And I will 
urge the President to veto this bill if it is included. I certainly 
hope, Madam President, that those who want to see our election laws 
enforced will vote with me when that amendment is offered.
  Madam President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CAMPBELL. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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